The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Thursday, November 18, 2010

"It's quite clear, we don't have a Facebook page."

If I'm applying the First Amendment, I have to apply it to a world where there's an Internet, and there's Facebook, and there are movies like ... 'The Social Network,' which I couldn't even understand," he said.Oy.

It doesn't get better:

Although Breyer was making a point about judicial philosophy, he also touched on the court's sometimes limited grasp of technological developments. For example, Chief Justice John Roberts in a public employee privacy case before the court earlier this year tried to figure out the role of a text-messaging service in enabling an exchange between two people.

"I thought, you know, you push a button; it goes right to the other thing," Roberts said. Responded Justice Antonin Scalia: "You mean it doesn't go right to the other thing?"

And in a recent case dealing with a California law regulating the sale or rental of violent video games to children, Justice Anthony Kennedy pressed a skeptical state lawyer on whether the v-chip blocking device, rather than a state law, could be used to keep children away from the games.

"V-chips won't work?" Kennedy asked, before the lawyer politely explained they are limited to television programming.I do agree with Breyer here:

Breyer said he disagrees with those who argue that originalism is "a good system because it will keep the subjective impulses of the judge under control."

"If you want to have history solve everything, let's get nine historians and not nine judges," Breyer said. "And you'll discover that the nine historians are fighting about the various points on which these cases turn anyway."

Adam Liptak from the NY Times has an interesting article today about how vague Supreme Court opinions are and how lower courts are struggling trying to figure them out. Here's a passage from the article dealing with the text messaging case:

In the privacy case that infuriated Justice Scalia and mystified Judge Hull, City of Ontario v. Quon, the Supreme Court ruled that a California police department had not violated the constitutional privacy rights of a member of a SWAT team when it audited the text messages on a pager the city had issued him.

Justice Kennedy took the unusual step of accepting three important points in the case only for the sake of argument, and he spent much of his opinion explaining that the court had taken pains to decide as little as possible.

“Cellphone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification,” Justice Kennedy went on. “On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cellphones or similar devices for personal matters can purchase and pay for their own.”

Given that, he said, the case should be decided on grounds so narrow that the decision would have almost no precedential effect. “The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear,” he wrote.

In his concurrence, Justice Scalia decried this approach.

“Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case, we have no choice,” he wrote. “The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.”

Many scholars say there is an important place in Supreme Court jurisprudence for incremental rulings, purposeful ambiguity and the delegation of discretion to lower court judges.

“If the goal is to clear up any conflict in the lower court opinions, then you may want a clearer opinion,” Professor Spriggs said. “But a real bright line may create some injustices in the system.”

The Southern District of Florida blog is authored by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals.